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Article
25 - Health
Background Documents | Article
25 Background
Seventh Session | Sixth Session | Fourth
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Working Group | References
Sixth Session
Governments
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Comments, proposals and amendments submitted electronically
Governments
ARTICLE 21 – RIGHT TO HEALTH [AND REHABILITATION]
Canada - Talking points as delivered
Aug. 8, 2005
Canada shares the view that guaranteeing the equal right to the highest attainable standard of physical and mental health without discrimination on the basis of disability is of great importance in this Convention. Canada is also very aware of the fact that there has been a tendency in the past, however, to over-emphasize the health-related aspects of disability and, in doing so, to lose sight of the important human rights dimension of disability that requires societies and their governments to take appropriate measures that go far beyond the medical sphere to promote equality and inclusion. The focus of such measures should be as much on changing social norms and structures as on providing services to persons with disabilities. We believe all of these considerations should be kept in mind as we work toward finalizing the language in this Article and toward achieving a balance between a strong general guarantee of the right in question and articulating the ways in which the right may be realized.
To that end, Canada has a number drafting proposals to suggest which we believe will help both to strengthen this article and to focus it on the realization of true equality for persons with disabilities with respect to the right to health. Many of these suggestions pick up on those made by the EU and others at this Session of the Ad Hoc Committee sessions and at previous ones.
First, however, and in response to the Chair’s invitation to speak to the issue of whether rehabilitation should be separated from the right to health, in Canada’s view, this Article should reflect a broad and holistic understanding of the right to health which will, at times, include certain health-related elements of what is commonly referred to as “rehabilitation”, including services such as physiotherapy, for example. We are of the view that these concepts appear to be included, by definition, in references to health services. Thus, we believe that references to rehabilitation could be deleted from this Article.
At the same time, we believe that there are important aspects of both habilitation and rehabilitation that are not health-related. Moreover, these aspects must always be delivered in a manner that respects the human rights, dignity, equality, inclusion and autonomy of persons with disabilities, something which has not always occurred in the past. If we are to have a separate article on rehabilitation, we believe that habilitation and rehabilitation should be carefully defined and subjected to appropriate human rights protections.
Another alternative – Canada’s preferred alternative – would
be to articulate important aspects of social habilitation and rehabilitation
in existing draft Articles in terms. As New Zealand has suggested, these
aspects would be articulated in terms of their outcomes, thereby capturing
what we understand most delegations to mean by the terms “habiliation
and rehabilitation”. These articles include:
• Article 15 on living in the community (e.g. paras. c) and proposed
cbis) on the provision of in-home, residential and other community support
services);
• Article 17 on education (e.g. teaching of Braille, sign language,
mobility skills and other life and social development skills for persons
with disabilities));
• Article 19 and/or 20 on personal mobility (e.g. facilitating access
to mobility aids and assistive devices); and
• Article 22 on the right to work (e.g. para. 22(g) on vocational and
professional rehabilitation programs).
Second, but just as important, Canada suggests that to highlight the importance of promoting equality and eliminating discrimination against persons with disabilities in respect of the right to health, the first sentence of the chapeau of Article 21 should “guarantee” (rather than recognize) the right of persons with disabilities to the enjoyment of the highest attainable standard of physical and mental health on an equal basis with others. In addition to the reference to equality, Canada believes that the chapeau of this Article should refer explicitly, as is done in Article 12 of the ICESCR, to the right to the enjoyment of the highest attainable standard of physical and mental health. We note in this regard that the Special Rapporteur on Health’s 2005 Report to the Commission on Human Rights invites us to remain mindful of the need to consider mental health as an important component of the right to the highest attainable standard of health.
In Canada’s view, the second sentence of the chapeau is not required, and indeed as currently drafted tends to weaken the guarantee of the right. In particular, the language “strive to ensure” is not necessary or helpful, assuming once again that concerns relating to progressive realization will be dealt with in Article 4 of the Convention.
Moreover, while access to healthcare services is an important aspect of the right to health, it is only one aspect of the right to health as broadly defined in international law, as we have heard today. We therefore suggest moving the question of access to such services to para. a), where it is already largely covered in the WG text.
Canada therefore suggests, in a manner which we believe takes account of suggestions already made by a number of delegations, that the full chapeau of Article 21 could more appropriately read:
States Parties shall take all appropriate measures to guarantee the right of persons with disabilities to the enjoyment of the highest attainable standard of physical and mental health on an equal basis with others, including: […]
Third, Canada believes that the non-exhaustive list of particular ways in which this right should be realized should be kept relatively brief and focused on key areas of particular relevance to persons with disabilities, while avoiding repetition of elements already found in other articles. We favour many suggestions made previously by the EU and New Zealand in this regard, with a few modifications:
• If the chapeau of Article 21 is re-framed clearly in terms of the equal right to health, we would suggest that para. a) read:
Ensure that persons with disabilities have equal access to the same range of health facilities, goods and services available to others, including equal access to sexual and reproductive health services.
• We note that provided the right is framed in terms of equality, there is no need to refer to “citizens”, as discussed with respect to previous articles.
• We note that Canada believes that the reference to “sexual and reproductive health services” should remain in the text, given the importance of this issue to persons with disabilities. In addition, we note that this para. may also be an appropriate place for a reference to the particular concerns of women and children with disabilities, including in relation to the need to clearly prohibit forced sterilization, as we understand will be discussed in the context of proposed Article 15bis, although as we understand it, the specific issue of forced sterilization should already be covered under Article 11 (or perhaps 12bis) of the Convention.
• We support the proposed deletion in WG para. c) of “endeavour to”.
• We support the deletion of paras. d)-f), as we agree with others that they are overly programmatic and/or already covered elsewhere.
• We support the wording proposed by the EU intended to capture the ideas currently found in para. h), i) and j), while avoiding some of the overly programmatic language of those paragraphs. In addition, we suggest that this important measure should be moved up in the list of measures states Parties are obliged to take.
• Finally, we support the proposed deletion of paras. k) through
m), and in particular note that we would not want to see repetitive but
also possibly inconsistent language on the right to privacy already covered
in Article 14, on the prevention of non-consensual medical interventions,
already covered in Article 11 or perhaps 12bis, and on the involvement
of persons with disabilities in formulating health policy, which we believe
should be adequately covered through a combination of Articles 4 and 18.
In this regard, we note that we would want to see the reference in Article
4 be to consultation of persons with disabilities in respect of all public
policy, not just issues of particular concern to persons with disabilities.
6 AHC 21 Canadian statement August 12, 2005
on Article 21 Facilitator’s proposal
Canada expresses its appreciation to the facilitator, Jordan, for his hard work in moving this issue forward.
Canada can support this text as a basis for future work.
We have the following comments on the facilitator’s text:
First, regarding the chapeau, we have consistently supported using the CEDAW model throughout this convention, which requires States Parties to take effective measures to eliminate discrimination against persons with disabilities in order to ensure their enjoyment of human rights on a basis of equality.
If we do use a chapeau recognising rights, we should recognize the rights of persons with disabilities without discrimination of any kind and on a basis of equality, rather than limit the grounds of non-discrimination to disability. Each reference to recognizing the rights of persons with disabilities addresses non-discrimination on the basis of disability. However, in order to ensure that persons with disabilities enjoy the same rights as everyone else, we must ensure that they can enjoy these rights without discrimination of any kind.
The issue of the language to be used in chapeaux in this convention remains outstanding and should be discussed in more depth.
Secondly, we believe that this article should ensure that persons with disabilities have equal access to health care services. Therefore, subparas a and b should be revised to begin “ensure that all persons with disabilities have equal access to health care services ...”.
We strongly support the bracketed language in subpara a.
The issue of prior, free and informed consent should be included in articles 21 and 21bis and we would therefore propose a new subpara e as follows:
“e) ensure respect for the equal right of persons with disabilities to give free and informed consent prior to medical treatment.”
Such a reference should be consistent with references to this issue elsewhere in the convention.
On habilitation and rehabilitation, Canada supports New Zealand in that non-medical aspects of this issue should be mainstreamed into relevant articles. If a separate article 21bis is included, we would make the following comments on the facilitator’s draft:
In 21bis(1), we would replace “organize, strengthen and extend” with “ensure access to”.
We would insert a new sub-para a) as follows:
“a) such services are provided upon the prior, free and informed consent of persons with disabilities and on the basis of respect, dignity, and personal autonomy;”
In the existingsub-para a, we would replace “begin” with “are available”. We would also add after “based on the” the words “input of persons with disabilities and a”.
In sub-para b, we would delete the words after “available” with “in a community-based setting”.
COLOMBIA PROPOSAL FOR DRAFT ARTICLE 21
August 11, 2005
Right to Health
States Parties recognize that all persons with disabilities have the
right to the enjoyment of the highest attainable standard of health
without discrimination on the basis of disability. States Parties shall
ensure no person with a disability is deprived of that right, and shall
take effective measures to ensure access and coverage for persons with
disabilities to health services. In particular, States Parties shall:
a. Provide persons with disabilities with the same range and standard of health services as provided other citizens, including sexual and reproductive health services;
b. Provide programs ran by interdisciplinary teams of professionals to address early detection, evaluation and treatment for the persons with disabilities.
c. Seek adequate training and equipment of medical and paramedical personnel that provide services to persons with disabilities so that they have full access to pertinent technologies, methods and treatments.
d. Seek that persons with disabilities receive regularly the necessary treatment and medicines in order to keep or improve their functional capacity.
e. Provide those health services needed by persons with disabilities specifically because of their disabilities;
f. Endeavour to provide these health services as close as possible to people’s own communities;
g. Ensure that health services include the provision of safe respite places, to use on a voluntary basis, and counseling and support groups, including those provided by persons with disabilities;
h. Provide programs and services to prevent and protect against secondary disabilities, including amongst children and the elderly;
i. Encourage research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities;
j. Provide all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities, in line with the principles of this Convention;
k. Define and control quality standards of health services.
(Full stop for right to health)
k. Ensure that health and rehabilitation services provided to persons
with disabilities, and the sharing of their personal health or rehabilitation
information, occur only after the person concerned has given their free
and informed consent, and that health and rehabilitation professionals
inform persons with disabilities of their relevant rights;
This paragraph should be moved to new article 12bis on prior and free consent.
l. Prevent unwanted medical and related interventions and corrective surgeries
from being imposed on persons with disabilities;
This paragraph should be moved to new article 12bis on prior and free consent.
m. Protect the privacy of health and rehabilitation information of persons
with disabilities on an equal basis;
This paragraph should be moved to article 14 on respect of privacy as a complementary remark.
n. Promote the involvement of persons with disabilities and their organizations
in the formulating of health and rehabilitation legislation and policy
as well as in the planning, delivery and evaluation of health and rehabilitation
services.
This article could be included under Art. 18 on participation in political and public life under paragraph b) as sub numeral iii). (To promote the involvement of persons with disabilities and their organizations in the formulating of general legislation and policy.)
DRAFT ARTICLE 21BIS
REHABILITATION
The State Parties should ensure the provision of rehabilitation services
to persons with disabilities in order for them to reach and maintain
an optimal level of autonomy. In particular, States Parties shall:
a. Provide access and coverage of rehabilitation and support services to all persons with disabilities who require them, including persons with severe or multiple disabilities, in order to ensure optimal levels of mental, physical, physiological, occupational and social functionality.
b. Define and control quality standards of rehabilitation services.
c. Allow persons with disabilities, families, and communities to directly participate in the rehabilitation services.
d. Provide the rehabilitation services as close as possible to the persons with disabilities’ own communities.
e. Establish appropriate measures to provide rehabilitation programmes and services, in terms of functional re-adaptation, professional rehabilitation, basic training and temporary services such as evaluation and orientation to provide the persons with disabilities with the necessary tools that allow for self-realization, improvement of the quality of life, and better control of immediate surroundings and interaction in society.
f. Establish mechanisms to provide prosthesis, orthotics, orthopedic instruments
and any other technical, technological and external aids necessary for
persons with disabilities.
European Union Proposal Draft Article 21
Amendments to Working Group Text:
EU Proposal: Reword the title of this Article to read “Access to Healthcare”. Add new draft Article 21 bis on Rehabilitation and Habilitation. Delete all references to “rehabilitation” from this Article.
States Parties recognise that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall strive to ensure no person with a disability is deprived of that right, and shall take all appropriate measures to ensure access for persons with disabilities to health and rehabilitation services. In particular, States Parties shall:
EU Proposal chapeau: Delete “strive to” before “ensure” and insert “that” after “ensure” in line 3. Delete “and rehabilitation” in line 5.
(a) provide persons with disabilities with the same range and standard of health and rehabilitation services as provided other citizens, including sexual and reproductive health services;
EU Proposal (a): Delete “and rehabilitation” After “provided” insert “to” Delete “citizens” and amend “other” to “others”
(b) strive to provide those health and rehabilitation services needed by persons with disabilities specifically because of their disabilities;
EU Proposal (b): Replace “strive to” with “endeavour to”. Delete “and rehabilitation” in line 1. Add “including those designed to prevent and protect against secondary disabilities;” at the end.
(c) endeavour to provide these health and rehabilitation services as close as possible to people’s own communities;
EU Proposal (c): Delete “and rehabilitation”.
(d) ensure that health and rehabilitation services include the provision of safe respite places, to use on a voluntary basis, and counselling and support groups, including those provided by persons with disabilities;
EU Proposal (d): Delete
(e) provide programs and services to prevent and protect against secondary disabilities, including among children and the elderly;
EU Proposal (e): Delete as the issue is dealt with in (b)
(f) encourage research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities;
EU Proposal (f): Delete
(g) encourage the development of sufficient numbers of health and rehabilitation professionals, including persons who have disabilities, covering all disciplines needed to meet the health and rehabilitation needs of persons with disabilities, and ensure that they have adequate specialised training;
EU Proposal (g): Delete
(h) provide to all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities, in line with the principles of this Convention;
(i) ensure that a code of ethics for public and private healthcare, that promotes quality care, openness and respect for the human rights, dignity and autonomy of persons with disabilities, is put in place nationally, and ensure that the services and conditions of public and private health care and rehabilitation facilities and institutions are well monitored;
(j) ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent, and that health and rehabilitation professionals inform persons with disabilities of their relevant rights;
EU Proposal (h)(i)(j): Delete and replace with a new paragraph:
“endeavour to require health professionals to provide care of the same
quality to persons with disabilities as to others by, where necessary, raising
awareness of the human rights, dignity, autonomy and needs of persons with
disabilities through training and the promulgation, in consultation with
other concerned parties, of ethical standards for public and private healthcare.”
(k) prevent unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities;
EU Proposal (k): Move to Article 12 and reword
(l) protect the privacy of health and rehabilitation information of persons with disabilities on an equal basis;
(m) promote the involvement of persons with disabilities and their organizations
in the formulation of health and rehabilitation legislation and policy
as well as in the planning, delivery and evaluation of health and rehabilitation
services.
EU Proposal (l) and (m): Delete
The complete EU Proposal for Article 21, Access to Healthcare
States Parties recognise that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall ensure that no person with disabilities is deprived of that right, and shall take all appropriate measures to ensure access for persons with disabilities to health services. In particular, States Parties shall:
(a) provide persons with disabilities with the same range and standard of health services as provided others, including sexual and reproductive health services;
(b) endeavour to provide those health services needed by persons with disabilities specifically because of their disabilities, including those designed to prevent and protect against secondary disabilities;
(c) endeavour to provide these health services as close as possible to people’s own communities;
(d) endeavour to require health professionals to provide care of the same quality to persons with disabilities as to others by, where necessary, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation, in consultation with other concerned parties, of ethical standards for public and private healthcare.
European Union Proposal - Draft Article 21 bis
HABILITATION AND REHABILITATION
1. States Parties shall take effective and appropriate measures to enable persons with disabilities to attain their maximum independence and realise their full physical, mental, social and vocational potential. To that end States Parties shall organise, strengthen and extend comprehensive habilitation and rehabilitation services, including in the areas of health, employment, education and social services, in such a way that:
(a) habilitation and rehabilitation services and programmes begin at the earliest possible stage, and are based on the multidisciplinary assessment of personal needs; and
(b) habilitation and rehabilitation services and programmes support participation and inclusion in the community and all aspects of society.
2. States Parties shall promote the development of initial and continuing
training for all professionals and staff working in habilitation and rehabilitation
services.
Draft Article 21
RIGHT TO HEALTH AND REHABILITATION
[based on the working group text]
States Parties recognize that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. In particular, States Parties shall: [shortened]
a. ensure the access of persons with disabilities to primary health care without discrimination; [Second World Assembly on Ageing, 2002]
b. [unchanged]
c. [unchanged]
d. [unchanged]
e. [unchanged]
f. encourage research [that is compatible with the respect for human dignity and the protection of human life,] and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities; [Declaration on Human Cloning]
g. [unchanged]
h. provide all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, [inherent] dignity [and worth] and needs of persons with disabilities, in line with the principles of this Convention;
i. ensure that a code of ethics for public and private healthcare, which
promotes quality care, openness and respect for [fundamental] human rights,
[inherent] dignity [and worth] and autonomy [independence] of persons with
disabilities, [respect for human dignity and the protection
of human life,] is put in place nationally, and ensure that the services and conditions
of public and private health care and rehabilitation facilities and institutions
are well monitored;
j. ensure that health and rehabilitation services provided to persons
with disabilities, and the sharing of their personal health or rehabilitation
information, occur only after the person concerned has given their free
and informed consent, and that health and rehabilitation professionals
inform persons with disabilities of their relevant rights;
[j bis. Accommodate persons with disabilities in order to facilitate the particular role that families play in providing the necessary elements of assistance, security and nurturance]
k. prevent unwanted medical and related interventions and corrective surgeries [that would deny the right of disabled persons to marry, bear children and found a family];
[k. bis Protect the motherhood of women with disabilities by developing and disseminating policies and programs for assistance based on the recognition of the particular needs of women with disabilities in pregnancy, childbirth and post-partum health care and child care;]
[k ter Ensure that persons with disabilities not be denied medical, life-preserving treatment, as well as nutrition and hydration, necessary to preserve or sustain that person’s life, regardless of method of administration or perceived quality of life;]
l. protect the privacy of health and rehabilitation information of persons with disabilities on an equal basis [with others];
m. [unchanged]
Article 21
Right to health and rehabilitation
Israel’s proposal
States Parties recognize that all persons with all kinds of disabilities have the right to the enjoyment of the highest attainable standards of health and medical, para-medical and psychosocial rehabilitation, without discrimination on the basis of disability and with a view to enabling persons with disabilities to reach and sustain their optimum level of functioning and self expression and to live an independent life of their choice. States Parties shall ensure no person with a disability is deprived of that right, and shall take all appropriate and cultural sensitive measures to ensure access for persons with disabilities to health and rehabilitation services. In particular, States Parties shall:
(a) Provide persons with disabilities with the same range and standard of health and rehabilitation services as provided other citizens, including sexual and reproductive health services;
(b) Provide those health and rehabilitation services needed by persons with disabilities specifically because of their disabilities;
(c) Provide these health and rehabilitation services as close as possible to people’s own communities;
(d) Ensure that health and rehabilitation services include the provision of safe respite places, and counselling and self support groups, including those provided by persons with disabilities;
(e) Provide programmes and services to prevent and protect against secondary disabilities, including among children, women and the elderly;
(f) Encourage research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities;
(g) Encourage the development of sufficient numbers of health and rehabilitation professionals, including persons who have disabilities, covering all disciplines needed to meet the health and rehabilitation needs of persons with disabilities, and ensure that they have adequate specialized training;
(h) Provide to all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities, in line with the principles of this Convention;
(i) Ensure that a code of ethics for public and private health care, and rehabilitation which promotes quality care, openness and respect for the human rights, dignity and autonomy of persons with disabilities, is put in place nationally, and ensure that the services and conditions of public and private health care and rehabilitation facilities and institutions are well monitored;
(j) Ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent, and that health and rehabilitation professionals inform persons with disabilities of their relevant rights;
(k) Prevent unwanted medical, rehabilitative and related interventions and corrective surgeries from being imposed on persons with disabilities;
(l) Protect the privacy of health and rehabilitation information of persons with disabilities on an equal basis;
(m) Promote the involvement of persons with disabilities and their organizations
in the formulation of health and rehabilitation legislation and policy
as well as in the planning, delivery monitoring and evaluation of health
and rehabilitation services.
Draft Article 21
RIGHT TO HEALTH
States Parties recognise that all persons with disabilities have the
right to the enjoyment of the highest attainable standard of health
without discrimination on the basis of disability. States Parties shall
ensure no person with a disability is deprived of that right, and shall
take all appropriate and effective measures to ensure access for persons
with disabilities to free or affordable health services. In particular,
States Parties shall:
(a) provide persons with disabilities with the same range and standard of health services as provided other citizens, including sexual and reproductive health services;
(b) Ensure that health services needed by persons with disabilities specifically because of their disabilities are provided, including prevention and protection against secondary disabilities;
(c) endeavour to provide these health services as close as possible to people’s own communities;
(d) Undertake and encourage the development of sufficient numbers of health professionals, including persons who have disabilities, covering all disciplines needed to meet the health needs of persons with disabilities, and ensure they have adequate specialised training;
(e) provide all health professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities;
(f) ensure that a code of ethics for public and private healthcare, that promotes quality care, openness and respect for the human rights, dignity and autonomy of persons with disabilities, is put in place nationally, and ensure that the services and conditions of public and private health care facilities and institutions are well monitored;
(g) ensure that health services provided to persons with disabilities, and the sharing of their personal health information, occur only after the person concerned has given their free and informed consent, and that health professionals inform persons with disabilities of their relevant rights;
(h) prevent unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities;
(i) protect the privacy of health information of persons with disabilities on an equal basis;
(j) promote the involvement of persons with disabilities and their organizations
in the formulating of health legislation and policy as well as in the planning,
delivery and evaluation of health services.
Art. 21 : RIGHT TO HEALTH [RIGHT TO HEALTH CARE AND MEDICAL REHABILITATION – Proposed title of Art. 21]
[Reformulate chapeau] “The States Parties recognize that the promotion of health and the prevention of disabilities is an immutable and essential responsibility of all States and that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, and considering human diversity. States Parties shall ensure that no person with disability is deprived of the right to health and medical rehabilitation and shall take appropriate and effective measures to ensure access, affordability, adequacy and continuity of health and medical services.”
(e) provide programs and services to prevent and protect against secondary disabilities, [including amongst children and the elderly – delete and change to “in all age group;”]
(f) [encourage – delete and change to “promote and support”] research and the development……….
(i) [acceptable but divide into sub-para]
ensure that a code ethics for public and private healthcare that promotes
quality care, openness and respect for the human rights, dignity and
autonomy of persons with disabilities, is put in [place nationally
ensure that the services and conditions of public and private health care and rehabilitation facilities and institutions are [well monitored – delete and change to “adopting accepted standards of quality care”]
(j) ensure that health and rehabilitation ………………………, and that health and rehabilitation professionals inform persons with disabilities[/guardians – insert] of their relevant rights
[delete (k) and (l) for being redundant]
Draft Article 21 : Right to Health and Rehabilitation
(1) Add to paragraph (a) at the end the sentence " and when possible shall be obliged to provide treatment to curable disabilities cases in their all different stages failed by persons with disabilities due to poverty" to read -.
21.(a) provide persons with disabilities with the same range standard of health and rehabilitation services as provided to other citizens , including sexual and reproductive health services; ( and when possible, shall be obliged to provide treatment to curable disabilities cases in their all different stages failed by persons with disabilities due to poverty.)
(2) Add to paragraph (b) at the end " free of charge" to read :
21.(b)strive to provide those health and rehabilitation services needed by persons with disabilities specifically because of their disabilities free of charge;
(3) Add to paragraph (h) in the second line "observe subtleties toward persons with disabilities and give them priority in their work" to read :
i
21. (h) provide all health and rehabilitation professionals an appropriate
education and training to ( observe subtleties toward
persons with disabilities and give them priority in their work )and to increase their disability
- sensitive awareness and respect for their rights dignity and needs
of persons with disabilities ,in line with the principles of this Convention;
Suggested Text from Delegation of Uganda regarding public health in Article 21:
3. State Parties shall ensure that persons with disabilities are included
in all public health outreach efforts intended to ensure good health for
everyone, recognizing that as members of the general population, individuals
with disability are equally entitled to equal and adequate assessment of
health needs, the development of policies aimed at controlling priority
health problems, and the assurance that services capable of realizing policy
goals do not discriminate on the basis of disability.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS
- Draft proposal
Article 21 - Health
21 July 2005
States Parties shall take effective legislative and other measures to ensure that persons with disabilities enjoy the right to the highest attainable standard of health and health care services without discrimination and can obtain physical, mental, and social well being.
1. To that end State Parties shall ensure that:
a. accessible and affordable health care is provided without discrimination;
b. persons with disabilities have access to the same range and standards of health services, including sexual and reproductive health service, as are provided to other citizens;
c. health services are not rationed, limited, curtailed or withheld on the basis of disability;
d. unwanted medical and related interventions and corrective surgeries are not imposed on persons with disabilities;
e. informed consent of persons with disabilities, is required prior to and during course of medicinal, surgical, therapeutic, or other interventions and modalities; informed consent requires disclosure of the experimental nature of any intervention and all other available information about the nature, adverse effects and benefits of the intervention;
f. persons with disabilities have access to their unedited health and medical records, and are entitled to give or withhold consent to disclosure of this information to third parties;
g. choices among different treatment options, are available for persons with disabilities, such as paramedic, alternative health services, second opinions, counselling, therapies, peer support, including health service provided by organizations of persons with disabilities;
h. all health facilities, goods and services provided to persons with disabilities respect medical ethics and confidentiality and each individual’s needs, and are appropriate, respectful of and sensitive to:
i. all medical equipment used for screening or other purposes is accessible and appropriate for the needs of persons with disabilities;
j. ensure that the provisions of special female health services include women with disabilities, i.e. during pregnancy, childbirth, postpartum health care, child-care and that all health service provided to other women, also is accessible for women with disabilities across the entire life span;
k. health services are provided for persons with disabilities as close as possible to local communities if so desired;
l. public and private health insurance are available for persons with disabilities on an equal basis with others;
m. all persons with disabilities can access the information and services as desired, to maximize their level of health;
n. information of all health related provisions, is provided in a timely, meaningful and accessible formats, modes, means and language, including sign language;
o. education, training and continuing development of health professionals,
including staff with disabilities, incorporates instruction on the needs
of persons with disabilities, including gender specific needs;
- Information Sheet
Article 21 Health- Informed Consent
Prepared by the International Disability Caucus
The Working Group text for article 21 deals with informed consent in
paragraphs (j) and (k):
(j) ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent, and that health and rehabilitation professionals inform persons with disabilities of their relevant rights;
(k) prevent unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities.
A footnote in the Working Group text suggested a definition for informed consent:
“Informed decisions can be made only with knowledge of the purpose and nature, the consequences, and the risks of the treatment and rehabilitation supplied in plain language and other accessible formats”.
1. Informed consent is an aspect of the right to health
CESCR General Comment No. 14: The right to the highest attainable standard of health (art. 12 ICESCR) states:
8. … The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.
Thus, health is not a public good to be pursued independent of the will of each individual, but requires respect for the will of the individual person with respect to his or her own well-being. This is reinforced by the requirement that health services be culturally acceptable to individuals and communities; see paragraph 12(c) of the General Comment.
2. Informed consent must be guaranteed to persons with disabilities on an equal basis with others
The General Comment also prohibits discrimination in the exercise and enjoyment of the right to health, including on the ground of disability. (General Comment No. 14, paragraphs 18 and 26). The freedoms contained in the right to health, as well as the entitlements, are subject to non-discrimination.
The General Comment unfortunately perpetuates discrimination based on disability, by permitting exceptions to be made to the obligation to refrain from coercive medical practices, in the context of “treatment of mental illness or the prevention and control of communicable diseases” such as HIV/AIDS. (See paragraphs 28 and 34.) Such exceptions fail to respect the rights and dignity of persons with psychosocial disabilities and persons living with HIV/AIDS and should not be repeated in this Convention.
3. Self-determination of persons with disabilities as starting point for informed consent
The proposed Supplement to the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, addressing the failure of governments to respect the autonomy of persons with disabilities on an equal basis with others, provides as follows:
27. … States should recognize that persons with disabilities have the same right to self-determination as other citizens, including the right to accept or refuse treatment. ..
33. States should ensure that medical facilities and personnel inform people with disabilities of their right to self-determination, including the requirement of informed consent, the right to refuse treatment and the right not to comply with forced admission to institutional facilities. States should also prevent unwanted medical and related interventions and/or corrective surgeries from being imposed on persons with disabilities.
The Supplement was developed by the Special Rapporteur on Disability in consultation with a panel of experts formed by international disability organizations, as part of mandated activity to monitor the Standard Rules. These provisions enjoy the support of the disability community and should be considered as a best practice in the establishment of human rights standards. Any exceptions or limitations to the exercise of informed consent by persons with disabilities will be a step backwards.
4. Legal capacity (capacity to act) underlies the right to informed consent
Legal capacity (capacity to act) is a necessary prerequisite for exercise of the right of informed consent by any individual. Without legal capacity, a person remains vulnerable to decisions by other people that may be unacceptable to the individual, and to a process of decision-making that disrespects self-determination and human dignity. In the health context, persons with disabilities face increased vulnerability to unacceptable services due to prejudice about our capabilities, needs, and worth as human beings. For this reason a recognition of legal capacity on an equal basis with others, with supported decision-making as an entitlement that must not undermine legal capacity, is necessary to ensure that informed consent is meaningful for all people with disabilities.
Article 9 addresses legal capacity as a transversal matter in the Convention, relevant to exercise of all rights and freedoms. In article 21, it is sufficient to establish a right to informed consent, without any exceptions or limitations, and leave the resolution of legal capacity to article 9.
5. Access to information
Paragraph 2(m) refers to the provision of all health related information in timely, meaningful and accessible formats, modes, means and language, including sign language. This is crucially important for people with sensory, intellectual and other disabilities.
The extent to which this provision is implemented will directly determine the extent to which people with sensory, intellectual and other disabilities will be able to -
* access affordable health care without discrimination, clause 2(a);
* access the same range and standards of health services as others, clause
2(b);
* give informed consent to treatment, clause 2(e);
* access their health and medical records, clause 2(f);
* select treatment options, clause 2(g);
* access information to maximise personal health, clause 2(l).
The working Group recognised the importance of access to health and related information in appropriate formats, viz-
Working Group text, footnote 81:
`The Ad Hoc Committee may wish to consider whether the following wording be included in this sub-paragraph or broadened to become a definition in draft Article 3.
“Informed decisions can be made only with knowledge of the purpose and nature, the consequences, and the risks of the treatment and rehabilitation supplied in plain language and other accessible formats”.'
- 2nd Information sheet
Article 21 Health
Prepared by the International Disability Caucus
Respect for human rights in the healthcare setting leads to improved
overall health and well-being of the individual. For persons with a
disability, this is even more true. Adequate health leads to greater
mobility, improved quality of life and self-esteem, and, therefore,
a maximized level of self-empowerment.
The concept of health concerns the physical, mental, and social well-being of individuals. It is imperative to recognize health as the combination of adequate healthcare in addition to factors relating to one’s social and environmental setting. It is crucial to understand that it is possible to have a disability and to also be healthy. Of course, in this way, it is also possible to have a disability and, because of discrimination or stigma, to receive inadequate care or to face social and environmental barriers that prevent the achievement of the enjoyment of the highest attainable standard of health.
●IDC suggested text 2(a), (b), and (c) outline the right to equitable healthcare access for all individuals with a disability. It is important to note that healthcare must be affordable and must not be rationed or deprived on the basis of disability. It is also imperative that sexual and reproductive health services be made available for persons with a disability. Often, stigma and discrimination cause health professionals to incorrectly think these services are not important for people with a disability.
●IDC suggested text 2(d-h) defend an individuals right to autonomy, informed consent, and confidentiality. Please also see IDC information sheet on informed consent. Persons with a disability must be given the right to choose what type and to what extent they seek healthcare. IDC suggested text clarifies these concepts and places increased emphasis on the state’s responsibility in ensuring ethical treatment of persons with disabilities.
●IDC suggested text 2(i) and (J) deal with essential elements of healthcare services that are often found to be inadequate for individuals with a disability, specifically, accessibility of healthcare equipment and the provision of reproductive health services to promote the health and well-being of women.
●IDC suggested text 2(l) ensures that private and public health insurance are affordable and do not discriminate on the basis of disability. This supports working group footnote 75 and is not included in the working group draft text.
●IDC suggested text 2(o) ensures disability-specific curriculum
within health professions schools and advocates for the development of
health care professionals with disabilities. Health professionals must
be taught to think about disability from a rights-based perspective. Additionally,
the concept of “nothing about us without us” supports the development
of health professionals with a disability.
- Draft proposal
IDC Draft Article 21 bis
Right to habilitation and rehabilitation
20 July
1. State Parties recognises that all persons with disabilities
have the right to an effective and appropriate habilitation and rehabilitation
to enable them to acquire the skills that are required to lead an inclusive
life.
2. All provisions of this article shall apply to all persons with disabilities irrespective of gender, age, degree, duration and complexity of needs and place of residence. To that end State Parties shall ensure that:
a. all kinds of habilitation and rehabilitation programs and services
are available that include a variety of measures and activities;
b. services are provided in the community of residence to the maximum extent
possible congruent with the individual desires;
c. the concept and strategy expressed in the policy of Community Based
Rehabilitation (CBR) is implemented where appropriate;
d. flexible funding options are available to allow individual choice and
design of services;
3. State Parties shall ensure that habilitation and rehabilitation plans
aim to reach and sustain the independence and self-determination of persons
with disabilities. State Parties shall therefore in all habilitation and
rehabilitation plans ensure that:
a. individual plans are established, being specialized, comprehensive,
time-limited and fully implemented;
b. individuals are assisted to meet their actual individual life goals
and personal aspirations;
c. the plans are gender and cultural sensitive, covering all stages in
life and all ages;
d. persons with disabilities have the right to design, direct, change or
reassess the plans over the period of life;
e. the privacy of personal information is respected by staff and others
providing these services;
f. no one should be required to follow habilitation and rehabilitation
programmes against individual’s wishes;
g. development of sufficient number of professionals, covering all professions
needed and ensure that they have adequate training;
h. women and girls with disabilities have, without discrimination, equal
access to all available habilitation and rehabilitation services and programs;
- Information sheet
Article 21bis Habilitation and Rehabilitation
Prepared by the International Disability Caucus
Habilitation and rehabilitation go far beyond the field of health and
embrace a wide range of issues including education, social counselling,
vocational training, transportation, accessibility and assistive technology.
Habilitation and rehabilitation must be addressed
from outside of the context of health and healthcare and exist as a separate
article. Within
the social model of disability, rehabilitation and habilitation are
the processes through which an individual with a disability is provided
the mechanisms to overcome the barriers imposed on him/her by stigma
and discrimination within a society. To place habilitation and rehabilitation
strictly within the paradigm of health risks supporting the outdated
medical model of disability in which disability is seen as an illness
or health problem that must be cured. This is direct violation of the
dignity and rights of an individual.
Habilitation is used to describe the wide range of means used to assist in enabling persons who are born with disabilities. Their needs are often different from the needs of people who acquire disabilities later in life, i.e. those who will require the right to rehabilitation. For these reasons, they are addressed within the same article, yet as different processes. It should also be noted that these processes must be gender sensitive and include opportunities for both men and women to independently determine their path of development.
The concept of Community-Based Rehabilitation (CBR) is also emphasized in IDC suggested text 2(c) in support of footnote 76 of the working group text. CBR guarantees that rehabilitation services be planned and provided as a joint effort of the person with a disability, the family, and the community. The UNDP, ILO, UNESCO, and WHO all support CBR strategies within the field of habilitation and rehabilitation.
The precedent for the separation of habilitation and rehabilitation as
a rights-based issue outside of the field of health has been established
within several key international treaties and documents:
1. In the UN Standard Rules on the Equalization of
Opportunities for Persons with a Disabilities, Rule 3 “Rehabilitation” is distinct from
Rule 2 “Health.” Also within the UN
Standard Rules, paragraph
23 in the definitions section states:
● The rehabilitation process does not involve initial medical care. It
includes a wide range of measures and activities from more basic and general
rehabilitation to goal –oriented activities, for instance vocational rehabilitation.
2. The CRC, in Article 23, treats health and rehabilitation services as two
distinct rights:
●”..ensure that the disabled child has effective access to and receives
education, training, health care services, rehabilitation
services, preparation
for employment and recreation opportunities…”
3. ILO Convention No. 159 puts the right to habilitation and rehabilitation
in a purely vocational context, emphasizing those elements of habilitation
and rehabilitation policy that pertain to the right to work.
4. Key regional instruments have clearly separated the right to health and
the right to habilitation and rehabilitation. Article 15 of the European Social
Charter (1966 revision) addresses “the right of the physically or mentally
disabled to vocational training, rehabilitation and resettlement,” while
Article 11 outlines “the right to the protection of health.”
SOCIETY OF CATHOLIC SOCIAL SCIENTISTS
Statement by the NGO Pro-Life/Pro-Family
Coalition for the Protection of Persons with Disabilities
Article 21
August 8, 2005
It is crucial to remember that this Convention will be a legally binding document. Unless we are careful, this document could contribute to the codification of abortion and euthanasia into international law.
The terms “reproductive health,” “reproductive health
care,” “reproductive health services” or “reproductive
rights” do not appear in any legally binding UN document. The chapeau
of the Article talks about health and rehabilitation “rights” and “services.” This
would add a new “right” that could be interpreted to include
abortion in a legally binding document regardless of whatever formulation
of “reproductive health” is used.
There is no reason to single out particular services, especially reproductive
and sexual ones (also, one should ask what do sexual “services” or “care” include?).
People with disabilities need a full range of health care, not just sexual
and reproductive health care. Health care includes reproductive health
care as well as all the other health care needs of people with disabilities.
During deliberations, it is being said over and over again that persons
with disabilities do not want any special rights or standards, they just
want to be on an equal basis with the non-disabled and that there is no
need to single each and every standard.
Why single out only one aspect of health care unless the intent is to promote
the use of genetic testing to eliminate unborn babies with disabilities
before they are born by abortion and to promote eugenic abortion or sterilization,
rather than motherhood, for women with disabilities. Women with disabilities
have been the victims of discrimination precisely because of their disability.
These are areas of serious concern for persons with disabilities and should
be addressed. The wording in this article as proposed would not cover that.
It is important to emphasize the right of disabled persons to marry and
found a family (UNDHR, ICCPR).
In addition, there is language that needs to be clarified in regard to
medical treatment. Persons with disabilities are the most vulnerable to
the denial of medical treatment and food and water because of their perceived
quality of life (not their disabilities). There needs to be specific language
that provides protection for them in these cases.
Also, in this Article in particular and throughout the document the “worth” should be added to the term “dignity” so it reads “dignity and worth” as it appears in the UN Charter and in the UNDHR. As you know, term “dignity” has been corrupted to justify euthanasia and assisted suicide, such as “death with dignity.”
Please support these changes and/or introduce the following suggested revision:
Subparagraph (a) – Delete “including sexual and reproductive health services”.
STATEMENT OF THE SOCIETY OF CATHOLIC SOCIAL SCIENTISTS (SCSS)
ARTICLE 21 – RIGHT TO HEALTH
August 9, 2005
During the formal session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, held on Monday, August 8, a representative from the Society for the Protection of Unborn Children asserted that the Working Group Draft for Article 21 of the Convention could be interpreted as creating new sexual and reproductive rights such as a right to abortion.
In response, the Chairman cited paragraph 94 of the Report of the Ad Hoc Committee on the Fifth Session (A/AC/265/2005/2), stating that paragraph 94 illustrates that the Working Group has no intention of creating new human rights through this Convention.
However, it is my position as legal counsel for the Society of Catholic
Social Scientists that the proposed language for Article 21 could create
new sexual and reproductive rights for the following reasons:
• Even though paragraph 94 may accurately reflect the intent of the
Working Group, it offers no legal protection that the outcome document will
not be interpreted to contain new human rights.
• In fact, paragraph 94 itself does not mention rights, or the creation
of new rights at all.
• More importantly, even if paragraph 94 were incorporated by reference
into the report of this session, or any other session, it would merely reflect
the legislative intent of the drafters of the language of this document.
It would not necessarily reflect the intent of those who would later ratify
this Convention. As such, paragraph 94 may be persuasive but certainly not
binding legal authority on a juridical body charged with interpreting this
treaty, such as national tribunals, regional tribunals, and international
compliance committees and juridical institutions.
• The Working Group text of Article 21 includes “sexual and reproductive
health services” as a component of the “right to health”.
No legally binding international treaty or convention contains such language.
If the intention of this working group is not to create new rights in international law, it should avoid using unprecedented and vaguely defined new rights language.
Statement by Mr. Wayne Cockfield, National Right to Life
Article 21
August 08, 2005
Thank you Mr. Chairman,
My organization would like to propose the addition of language for Article 21, sub-paragraph k ter. which is –
Ensure that persons with disabilities shall not be denied nutrition and hydration necessary to preserve or sustain that person’s life, regardless of method of administration or perceived quality of life
Also, we would like to propose k quat –
Ensure that persons with disabilities shall not be denied medical, life-preserving treatment, with the intent of ending the disabled person’s life.
Because people with disabilities are often perceived by others as having a lower quality of life, they are in the greatest danger of being denied life-preserving medical treatment on an equal basis with others. They are also in great danger of being denied nutrition and hydration, food and fluids.
In the recent case here in America, Terri Shiavo was thirsted and starved to death. Terri was denied all medical treatment, food and fluids not because she was mentally disabled, but because her disability allowed others to label her as having a poor quality of life. Even though she was not dying and not even sick, she was still killed. In most nations of the world, if someone starved and thirsted an animal to death they would be jailed. But it is legal to do this to a person with disabilities.
We hear the statement, the “right to die”, but it is important to remember that this so called right is only available to persons with disabilities. Death is not a medical treatment, and the “right to die” for people with disabilities will soon become a “duty to die”. In a time of limited medical resources, it is persons with disabilities toward whom euthanasia will be directed.
Killing a person with disabilities by thirst is especially heinous. The withholding of food and fluids, thereby causing death by thirst and dehydration is nothing less than torture.
As a landmine survivor, I am speaking as someone who knows what it is like to suffer terribly from extreme dehydration. I had to go through a period of severe thirst for medical reasons. During this time of thirst, my lips split from dryness; I had ulcers in my mouth; my tongue swelled until I could barely talk; and my eyes had to be washed with fluids because my tear ducts dried up from dehydration.
Thirst is the worst kind of torture. If the killing of persons with disabilities by denying them food and fluids is not outlawed specifically by this convention, then persons with disabilities will be denied, on an equal basis with others, the same protection against torture that is afforded all other people.
What good is it to build ramps into hospitals if once inside, persons
with disabilities can be denied life-preserving medical treatment, and
food and fluids because of their disability and perceived poor quality
of life?